Black v. American & Foreign Ins. Co.

• Decision Date: 25 November 1970
• Docket Number: 2,Nos. 1,3,No. 45429,45429,s. 1
• Citation: 123 Ga.App. 133,179 S.E.2d 679
• Court: Georgia Court of Appeals
• Parties: William C. BLACK v. AMERICAN & FOREIGN INSURANCE COMPANY et al

Page 679

179 S.E.2d 679

123 Ga.App. 133

William C. BLACK v. AMERICAN & FOREIGN INSURANCE COMPANY et al.

No. 45429.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 25, 1970.

Rehearing Denied Dec. 18, 1970.

Certiorari Denied Feb. 16, 1971.

William O. Carter, Hartwell, for appellant.

Erwin, Epting, Gibson & Chilivis, E. Davison Burch, Athens, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Claimant was employed by Advocate Press, a printing firm at Franklin Springs, on a full-time weekly basis from Monday through Friday at a wage of $100 per week as the supervisor of its finishing department, where he supervised three regular workers and other part-time help. He supervised the operation of the stitcher, folder and cutter, the packaging of the finished materials and sending them out, and did some of the work himself. The packaged materials were carried to the Post Office each afternoon just before five o'clock. Occasionally packages were delivered by claimant to the customer by company automobile.

He also worked regularly but part-time, a portion of two days each week, for American Courier Corporation of Atlanta, earning an average weekly wage of $32.70, where his duties were the driving of an automobile on a regular route in Athens and vicinity to pick up business records and take them in to the company's Atlanta office. These were sealed packages of checks and records, usually in envelopes but sometimes in larger packages.

While on the route for American Courier November 16, 1968 he dozed at the wheel and the car he was driving went into the ditch against an embankment, and he asserts that his back and arms were injured.

Because of his injuries he was unable to work on either job from November 16, 1968, until January 2, 1969, when he returned to his job with the Advocate Press full-time and at an increase in pay of $10 per week. He returned to work January 3, 1969, on the route for American Courier working more time than he had been devoting to that prior to his injury, but after some three or four weeks and on the advice of his physician he gave up the Courier job because his injuries made the driving of the car and the lifting of packages required on the route too much for him.

He has a long history of arthritic trouble with his back, for which he has had medical and chiropractice treatments.

On a hearing of his claim against American Courier to determine the matters of whether the employee had suffered compensable injuries and the extent thereof, claimant sought to have the 'concurrent similar employment doctrine' applied in determining the amount of his entitlement as compensation, but the hearing director found that the similarity in the types of work done for the two employers was not sufficient to authorize application of it. Compensation for partial loss of use of his arms was awarded based upon his earnings with American Courier and upon total disability from November 16, 1968, to January 2, 1969, when he returned to work, and thereafter upon the basis of a 25 percent loss of use in his left arm and 35 percent loss of use in the right arm. Upon appeal to the full board the findings of fact and the award of the hearing director were adopted, and on appeal to the superior court the award was affirmed.

1. The finding that the similarity of claimant's duties with the two employers was insufficient to authorize the application of the 'concurrent similar employment doctrine' (see St. Paul-Mercury Indem. Co. v. Idov, 88 Ga.App. 697, 77 S.E.2d 327, and see opinion dismissing certiorari in 210 Ga. 256, 78 S.E.2d 799) was authorized by the evidence. There is no claim here against Advocate Press, and if there were the evidence demanded a finding that claimant's injuries did not arise out of or in the course of his employment with it. Accordingly, the award was properly made upon the basis of wages earned as an employee of American Courier. Code § 114-402.

2. 'Employment' as used in Code § 114-402(1) means the type or kind of employment, such as that of janitor, baker, truck driver, etc. It refers to the particular calling or kind of employment in which claimant was engaged at the time of his injury. In Re Howard, 71 Ind.App. 557, 125 N.E. 215; Anderson v. Roberts-Karp Hotel Co., 171 Minn. 402, 214 N.W. 265, each cited with approval in St. Paul-Mercury Indem. Co. v. Idov, 88 Ga.App. 697, 77 S.E.2d 327, supra. Here claimant had been working regularly as a route or pick-up man for American Courier for about a year prior to his injury, doing the same work. That was the 'employment' in which he was engaged 'at the time of his injury.' A different employment with the Advocate Press in which he was not so engaged at the time, but in which he was engaged at other times, is not the statutory standard to be applied, and wages which he may have earned in that are not to be considered in determining the amount of the award.

3. It appears that American Courier had four categories of employees who worked the routes. The first category was that of a supervisor whose duties included the supervision and direction of other route men. The second was that of a full time courier whose duties regularly required 32 or more hours of work each week. The third was that of a part-time courier whose duties regularly required less than 32 hours of work each week, and the fourth category was that of a substitute courier whose work and hours were irregular, consisting of substituting on the routes for employees who became ill or who, for other reasons, might be off from work. The pay scale was different in each category, all being paid on an hourly basis. Mr. Black was a part-tiem courier and by his testimony as well as that of his employer his work week regularly consisted of making pick-ups on the route twice each week, and this required an average of about 16 1/2 hours per week. Counsel stipulated at the opening of the hearing that his average weekly wage with American Courier was $32.70. ¹ This stipulation was binding upon the parties, and the board was authorized to base its award thereon. McCord v. Employers Liability Assur. Corp., 96 Ga.App. 35, 99 S.E.2d 327; Tigue v. American Mut. Liability Ins. Co., 108 Ga.App. 723, 134 S.E.2d 525; Lavender v. Zurich Ins. Co., 110 Ga.App. 196, 138 S.E.2d 118. Since the evidence was consistent with the stipulation as to claimant's earnings from his job with American Courier it is immaterial whether the finding be grounded upon the stipulation or the evidence.

Furthermore, both claimant and the employer's manager testified that he was a part-time employee. For about three weeks after he returned to work in January claimant devoted better than 40 hours per week to the job, but both claimant and the employer explained that this resulted from his voluntary taking on the additional work as a temporary substitute for a courier who was then confined to the hospital. 'Where wages are paid on an hourly basis, the fulltime weekly wage is the wage per hour multiplied by the number of hours shown by the evidence to constitute a full time work week for such employee under his contract of employment.' New Amsterdam Cas. Co. v. Brown, 81 Ga.App. 790(2b), 60 S.E.2d 245. Since Black had a regular work week with American Courier of 16 1/2 to 17 hours, consideration of evidence as to what an employee of that company in another category made each week would have been improper. Carter v. Ocean Accident & Guarantee Corp., 190 Ga. 857, 11 S.E.2d 16, does not require a different result. See Federated Mut. Implement and Hardware Ins. Co. v. Elliott, 88 Ga.App. 266, 271, 76 S.E.2d 568, cert. den., in which New Amsterdam was followed. It is to be noted that in Carter the Supreme Court asserted in 190 Ga. at p. 858, 11 S.E.2d at p. 17, that 'If a regular wage has been established and the employee is receiving it on the date of the accident, then that, and no other, is the basis on which compensation must be computed.' The board has followed this admonition.

4. The award of compensation based upon a partial permanent handicap in the partial loss of use of his arms was made under the provisions of Code Ann. § 114-406, and this award was authorized by the evidence. Since an award under this provision of the law is 'in lieu of all other compensation of the permanent partial handicap,' it was proper to give no consideration to a claim for compensation on account thereof under §§ 114-404 or 114-405. Benton v. U.S. Cas. Co., 118 Ga.App. 804, 165 S.E.2d 473. And see Travelers Ins. Co. v. Reid, 178 Ga. 399, 173 S.E. 376; New Amsterdam Cas. Co. v. Brown, 81 Ga.App. 790, 60 S.E.2d 245; Surmiak v. Standard Accident Ins. Co., 106 Ga.App. 479, 127 S.E.2d 334; National Surety Corp. v. Nelson, 99 Ga.App. 95, 107 S.E.2d 718; Nation v. Pacific Employers Inc. Co., 112 Ga.App. 380, 383, 145 S.E.2d 265.

5. We find no error in the manner in which the total compensation to be paid was calculated. Appellant asserts that separate awards should have been made for the loss of use of each of claimant's arms rather than lumping the two together in one sum. It is purely a matter of arithmetical calculation. If, as appellant suggests, there is improvement or deterioration in the use of one arm but not in the other, or if one arm improves while the other falters, a new award based upon change in condition could be arrived at without difficulty by simply applying the applicable percentage in each instance and finding a new total.

Claimant urges that the amount of compensation awarded is small, and it is. However, it is in accord with the provisions of the Act. In this connection it is to be noted that his only economic loss is in connection with the American Courier job for which compensation was awarded. He returned to work for the Advocate Press at an increased wage.

Judgment affirmed.

BELL, C.J., HALL, P.J., and PANNELL, QUILLIAN and WHITMAN, JJ., concur.

JORDAN, P.J., and DEEN and EVANS, JJ., disse...